Federal Court decision on document confidentiality

OUTCOME: Allowed in Part

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SG 42 of 1998

BETWEEN: [COMPANY]

(acn [PHONE])

first Applicant

[COMPANY]

(aCn [PHONE])

second applicant

AND: [NAME]

Respondent

JUDGE: [NAME] J

DATE: 30 OCTOBER 1998

PLACE: ADELAIDE

REASONS FOR

DECISION HIS HONOUR: In this matter I have had but a limited opportunity to consider the detailed and helpful submissions of the parties, both in writing and orally. I have also considered the material presented in evidence, in particular the affidavits of [NAME] of 21 and 22 October 1998 and of [NAME] of 21, 22 and 28 October 1998. In the course of my consideration of the issue now before the Court I have also had regard to the nature of the applicants' claim as expressed in their statement of claim, and to the defence of the respondent. I have not separately looked at [NAME] of the documents about which there is an issue. I have had regard to the affidavit evidence concerning [NAME] to determine what, if any, orders ought to be made with respect to them. In the course of giving discovery in this matter, significant issues have arisen as to whether certain documents which have been discovered by the respondent should be made available for the inspection of the applicants and, if so, upon what terms. Those issues have led to the refinement of the categories of documents in issue to four groups. The present group of documents, in respect of which I am asked to make a ruling, is a series of documents said to be confidential and in respect to which the respondent has been only prepared to provide access to the applicants limited to the solicitors and counsel acting for the applicants and, upon certain terms, to experts independent of the applicants. The legal representatives of the applicants have considered those documents. The applicants now claim, in respect of a limited number of documents, that the claim for confidentiality is not warranted, or that, notwithstanding the claim for confidentiality reflected in the extent to which access has presently been permitted, further access should be permitted so that officers generally of the applicants may inspect those documents or, alternatively, that two named officers of the applicants may inspect those documents. In the interests of expedition, the applicants have not pursued that claim for general access. They have now limited their claims for access to the documents in issue to two named officers of the applicants: [redacted] For the purposes of ruling upon the application, I do not think it is necessary to consider in detail the legal authorities to which the parties have referred, and in particular I do not think it is necessary to consider in detail the refinements or perceived refinements of the law which various cases may identify. I have considered those cases. The documents in issue are discoverable, and have been discovered. The issue is the extent to which, if at all, those discovered documents should be made available for inspection. I accept, on the basis of [NAME] [NAME] affidavits, that in various respects they are confidential. In view of the orders which I propose to make, it is not presently necessary to discuss the nature and extent of that confidentiality severally in respect of [NAME] of the documents in issue. [NAME] [NAME] has not been cross-examined. It may be that the applicants have chosen not to cross-examine him in part because of the exigencies of time within which this application had to be resolved. For present purposes, I accept his evidence that, in various respects, the documents sought to be inspected more widely than presently permitted are confidential. Section 112 of the Workers Rehabilitation and Compensation Act 1986 ([COMPANY]) also proceeds on the premise that much of the information assembled by the respondent in the course of its operations will be confidential. I should not, in those circumstances, permit inspection beyond that which is necessary to achieve justice between the parties: Home Office v Harman [1983] AC 280 at 308; [NAME] v Thames Board Mills [1977] 1 QB 881 at 896. Although I have had regard to the contractual arrangements between the applicants and the respondent by virtue of which the respondent tendered to be accepted by the applicant as a provider, in my view that plea, which is also raised by way of defence, is not decisive of the present issue. That is simply because the relevant test is to determine what, in all the circumstances, is necessary to achieve justice between the parties, bearing in mind all proper claims for confidentiality. I have accepted that the documents are confidential on the basis of the material to which I have been referred. The terms of the tendering contractual arrangements reflect that at the time of tendering the parties accepted that the material provided should be confidential. In the balancing of the considerations of the need to preserve confidentiality on the one hand, and the need to achieve justice between the parties on the other, I have regarded those contractual terms as relevantly weighing in the scales against further access being permitted to the documents. The applicants' agreement acknowledging confidentiality of the documents may touch upon the demands of the interests of justice. Counsel for the applicants has indicated that the applicants are prepared to provide an undertaking themselves, and to procure an undertaking personally from [NAME] of [NAME] [NAME] and [NAME] [NAME], which will bind them personally and not simply as officers of the applicants, that will not simply recognise the obligation to keep confidential the material the subject of the documents sought to be inspected by them, but which will also include an undertaking on the part of [NAME] of them that in respect of any further tendering process to the respondent in which the applicants or either of them participate, or in which any other employer or other entity with which in any way [NAME] [NAME] or [NAME] [NAME] may at the time be associated, might participate, neither [NAME] [NAME] or [NAME] [NAME] will in any way be involved in or participate in or provide any information with respect to the information presently sought to be made available to them, or be involved in the tendering process itself. That understanding will insulate the respondent from the possible adverse commercial consequences of the disclosure of the documents in issue to those persons, as it will prevent [NAME] [NAME] and [NAME] [NAME] from participating in any way in any future tendering process. I suspect the undertaking should be limited in time. The documents in issue have been properly identified in a schedule to which the parties have referred, and are identifiable by reference to discovery numbers. The issues as to their respective confidentiality are addressed (other than discovered document numbered 10) in sequence by reference to discovery numbers in par 9 of the affidavit of [NAME] [NAME] of 28 October 1998. I have considered [NAME] of the matters to which he deposes, not simply to address the question of confidentiality, because I have accepted his evidence on that matter, but also to consider whether, in the light of the nature of the confidentiality to which he deposes, I should nevertheless make some order for further inspection of the documents to be available to either [NAME] [NAME] or [NAME] [NAME] or both. In making the rulings which I make, I do so on the basis that [NAME] and [NAME] [NAME] and [NAME] [NAME] will provide in writing undertakings of the general nature to which I have referred. Those undertakings are relevant to the balancing process which the parties agree I should apply, as they will very largely protect the confidentiality of the documents from the commercial detriment which the respondent otherwise fears. Before access is permitted to either of those persons, the parties should consult with a view to determining the form of the undertaking and, in the event of dispute, the matter can be brought back before the Court for ruling as to the appropriate terms of the undertaking. The undertaking, in a form finally to be determined, will have to be signed by [NAME] and by [NAME] [NAME] and [NAME] [NAME]. I propose to defer a ruling on those documents which, in the list of documents are numbered 46 to 48 and 81. [NAME] [NAME] describes those documents in his affidavit as internal E-mail records or activity log entries. Although they are discoverable and have been discovered, I do not have a sufficient understanding of those documents to form the view that they are sufficiently significant to the applicants' case to warrant the applicants having greater access for the purpose of inspection of those documents than presently is the case. I suspect that many of them will not be necessary to be inspected. It is appropriate not to lose sight of the fundamental nature of the applicants' case, as it is expressed in the details of the claim. In essence, it invokes claims under ss 45(2)(a)(ii) and (2)(b)(ii), 46 and 51AA of the Trade Practices Act 1974 (Cth) concerning the process by which the applicants ceased to be agents of the respondent, and the process by which the applicants' [NAME] to be renewed as agent of the respondent was not accepted. The [NAME] have access to those documents in any event. They may go through them for the purposes of identifying whether there is in fact any one or more of them which, in particular, requires to be considered by either [NAME] [NAME] or [NAME] [NAME] for the purposes of instructions. If there is then no agreement that the documents so identified should be treated in the way in which I propose to treat the balance of the documents, then the matter can be brought back before the Court. However, those documents in the first place do not strike me as inherently likely to be significant in showing the primary processes of the decision-making of the respondent about which the applicants complain. Subject to that matter and subject to the undertakings to which I have referred, I propose to order that [NAME] of the documents in the list of documents numbered 10, 13, 11 (two documents), 12 (two documents), 50 (three documents), 69, 70, 73, 74, 79-1, 79-8, 79-9, and 79-11, be made available for the inspection of [NAME] [NAME] and [NAME] [NAME]. In the case of documents numbered 11, 12 and 50 the reference to the number of documents is to those the parties have identified as being the subject to the present claim for confidentiality which these reasons address. I have not referred to the documents numbered 79-2 simply because I am told that it is the same document as document 69. That order is subject to the following particular conditions. In making available those documents for inspection by those two persons, the respondent is entitled to exclude, by masking, any content of any of those documents which records any information provided by an [NAME] which is specific information of or concerning that [NAME] or which records any information collated or assembled by the respondent which reflects or represents specific information provided by or concerning that [NAME], or any other entity providing services to the respondent. That formulation is intended to permit the masking of any information recorded in any of those documents which reflects the respondent's specific assessment of an [NAME] or its assessment of the comparative rating of individual tenderers. By way of illustration, for example, where there is a table listing an assessment of [NAME] of the tenderers, the order contemplates that the table with its heading will appear but the names of the tenders and what is said about [NAME] of them within the table may be masked, except for the information or comments regarding the applicant or either of the applicants. To ensure that it is clear, I indicate that the material which may be excluded by masking includes the levy rates and bid rates to which reference is made in those documents. I do not think it is necessary separately to go through [NAME] of the documents dealt with in [NAME] [NAME] affidavit of 28 October 1996 to single out that information. As is apparent from the documents which have been handed up to me by way of illustration to highlight the nature of the submissions, his affidavit is not necessarily entirely comprehensive in identifying such information. Illustrations appear both from those documents, and from the affidavit noting that certain documents record information specific to another bidder or to another entity, which clearly fall within the exclusion I have expressed. In fairness to the applicant, I note that the applicant has accepted that information, which might be called "third party information" presents different issues for consideration, and have not sought, by the resolution of the present issue, access to third party information. The question of how access to documents containing such information should be given, if at all, is the subject of a separate process now being undertaken. I have reached that view because it seems to me, having regard to the nature of the case, that it fairly reflects what counsel for the respondent described as the tension between the right to privacy and confidentiality of documents such as those for which inspection is now sought on the one hand, and achieving the ends of justice on the other. In particular, I am mindful of the fact that the limited inspection which is now permitted is confined to certain named persons who will have given an undertaking reflecting the terms to which I have referred. Because I do not pretend to have examined myself [NAME] of the documents in issue or to apprehend fully the issues which the applicants or the respondent may wish to ventilate during the course of the hearing, it is possible that further issues may emerge in the course of inspection of those documents by [NAME] [NAME] or [NAME] [NAME] and the taking of instructions in relation to them. I therefore propose to give liberty to apply generally to either party, but in particular liberty to the applicants to apply to extend the range of persons to whom access to a document or documents is permitted by the decision which I have announced, and to apply for variation of the terms of the undertaking which I have indicated should be provided. I will give the parties liberty to speak to the minutes and to the form of undertaking. I certify that this and the preceding five (5) pages are a true copy of the Reasons for Decision herein of the [NAME] [NAME].

Associate: Dated: 30 October 1998 Counsel for the Applicants: [redacted] with [NAME] [COUNSEL]

[NAME]: [COUNSEL]

Counsel for the Respondent: [redacted] with Dr [COUNSEL]

[NAME]: [RESPONDENT] of Hearing: 30 October 1998

Date of Decision: 30 October 1998